Frequently Asked Questions About Legal Separation

Posted on Jun 25, 2018 7:52am PDT

The following are answers to some of the most frequently asked questions about legal separation in Texas. The answers are general and are designed to help you better understand how Texas handles legal separation.

Legal separation is a concept that provides a middle ground between marriage and divorce. Some states have enacted statutes and enforce laws that allow or even require spouses to legally separate before divorcing.

The law in the individual circumstances of your case may vary and may affect the results in your case.

My spouse and I have separated. How does that affect our marital status?

Spouses who are separated but not legally divorced continue to be treated as married during separation from each other.

Adultery

This means if you have a girlfriend or boyfriend while married, it is still cheating. The excuse “we were on a break” will not work any better than it did in the TV show Friends.

Community Property

This also means until you are divorced, all property continues to be presumed to be community property.

In other words:

Your paycheck is still yours and your spouse’s

Anything you buy is still yours and your spouse’s

It does not matter if it is just your name on something; it is still yours and your spouse’s until you are divorced.

The community property presumption can be overcome if you can prove:

It was acquired before you were married

Inherited, or

A gift

The keyword in the above statement is proved. If you cannot prove it, the presumption applies.

Can I buy a house while separated from my spouse?

As I indicated above, Texas is a community property state. In Texas, we do not have "legal separation."

This means just because you buy real or personal property without your spouse, it does not mean property you buy will be your separate property after the divorce.

One of the things I tell my clients is that community property is anything you acquire from the day you are married until the day you are divorced. There are a few exceptions to that rule which you can read about in one of our other blog articles.

An example I give regarding the dangers of buying a house during a separation comes from a consult we gave to a lady prior to Hurricane Harvey.

This lady had not seen her husband in 20 years. During her separation she:

Bought a house with just her income

Paid off the house with just her income

The house was just in her name

The reason she came in for a consult had nothing to do with her concern for her house because in her mind it was her separate property. The reason was that she had met someone new and wanted to marry that person. However, it is really difficult to marry someone new when you are already married.

When she learned about the community property rule, it upset her. She asked me what she could have done to prevent her situation.

The answer was “divorce her husband 20 years ago.” She then said, “but the lawyer I talked to then wanted a lot of money.”

The sad thing though is unless her soon-to-be ex-husband was either a nice guy who did not want anything from her or he too had acquired a lot of property during their separation, whatever money she saved by not getting a divorce then was going to cost her 10 or 20 times as much now.

A general rule of thumb, if you do not want to be with someone anymore, is to get a divorce sooner rather than later.

Texas Alternatives to Legal Separation (SAPCR)

Although Texas does not have a statute regarding legal separation when a couple has minor children, Texas does have a law allowing people to seek court orders regarding the children even when the couple is still married.

A parent can file a “Suit Affecting the Parent-Child Relationship” (SAPCR) asking a court to establish provisions regarding:

This is not a perfect solution or replacement for a divorce or other states’ legal separation.

However, if you want to remain married and need some rules in place regarding your children, this is a legal tool available for you and your spouse.

What it does not do is put any rules in place regarding property. In other words, everything we discussed above about community property remains in place.

There are also no rules in place regarding the use of property. For example, you go to work one day and your spouse is feeling vindictive and steals your car. You can call the police and report that your spouse stole your vehicle, but they are not going to be able to help you much because it's their car as well.

If you need rules in place regarding property in addition to children, your best solution is probably a divorce.

Texas Alternatives to Legal Separation (Postnuptial Agreement)

However, if you are determined to remain married and want rules in place regarding property, you and your spouse can enter into a postnuptial agreement.

The law in Texas holds that you and your spouse may agree to and sign a post-nuptial agreement where a portion or all of their community estate is included in the agreement in some form or fashion.

A common part of this agreement is that either your income or your spouse’s income will be the separate property of whichever one of you has actually earned those wages.

You can also put in place rules regarding:

The exclusive use of property

Whether one of the spouses is permitted to stay in the home

How you and your spouse will handle debts going forward

How bank accounts will be handled

Alimony

What are some reasons for separation instead of divorce?

Some married couples rush into divorce without giving their marriage a chance. However, if they took some time and did marriage counseling to work on the issues in their marriage, they might be able to save their marriage.

Some couples choose separation rather than divorce for other reasons. Those reasons include:

Religious reasons. Divorce is prohibited or frowned upon in some religions.

Financial reasons like the costs of divorce or for health insurance.

Immigration issues.

Divorce may make more sense if:

There is no chance of reconciliation

It’s a toxic relationship

There is abuse;

It’s a bad situation for the children because of the above

Seeking Legal Advice Regarding Separating or Divorce

No matter whether you choose to separate or divorce, it is important to protect your assets and your future. If you want to draw up a legal separation agreement or you plan to divorce, it’s best to have legal representation. This is especially true when you have:

Assets

Property and

Children

A family law attorney can further explain the differences between separation and divorce and guide you in making a decision that’s in your best interests. Call the Law Office of Bryan Fagan if you’re getting separated or divorced 281-810-9760.

Law Office of Bryan Fagan | Spring Divorce Lawyer

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with a Spring, TX Divorce Lawyer right away to protect your rights.

Disclaimer

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.